[2023] KEHC 26919 (KLR)

Ali & another (Suing as the administrator of the Estate of the Late Hussein Asman Ali)) v Multiple Hauliers (EA) Ltd (Civil Suit 2 of 2016) [2023] KEHC 26919 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26919 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Suit 2 of 2016

FROO Olel, J

December 14, 2023

Between

Hassan Osman Ali

1st Plaintiff

Alima Hassan Ibrahim

2nd Plaintiff

Suing as the administrator of the Estate of the Late Hussein Asman Ali)

and

Multiple Hauliers (EA) Ltd

Defendant

Ruling

A. Introduction 1. The application before this court for determination is the Notice of Motion application dated 2nd March 2021 brought pursuant to provisions of Section 1A, 1B, 3A, 63(e) and 80 of the Civil Procedure Act, Order 45 Rule (1) of the Civil Procedure Rules and all other enabling provision of law. By the said application, the defendant/applicant seeks to review by way of recalculation the damages awarded for loss of dependency in the judgment delivered on 3rd August 2017.

2. The application is supported by a supporting affidavit dated 2nd March 2021 sworn by Dave Khamala the advocate for the defendant/applicant dated 2nd March 2021. The applicant states that vide its judgement dated 3rd August 2017, the court did award the plaintiffs/respondents an award of loss of dependency calculated at (30,000 x 12 x 25 x 1/3= Kshs 6,000,000/=). The same figure was wrongly calculated as the sum total of the loss of dependency should have been Ksh 3,000,000/=. The judgment thus ought to be reviewed to reflect the correct figure.

3. The Respondent did not file grounds of opposition or replying affidavit to oppose this application

B. Determination 4. I have carefully considered the Application before court and the only issue for determination is whether this court should review part of its judgment dated 3rd August 2017 to reduce the amount awarded for loss of dependency from Ksh 6,000,000/= to Kshs 3,000,000/=

5. On the first issue, Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provides as follows: -Section 80 Review“Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”[Order 45, rule 1. ] Application for review of decree or order.“1. (1)Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”

6. From the above provisions, it is clear that while Section 80 of the Civil Procedure Act grants the court the power to make orders for review, Order 45 sets out the jurisdiction and scope of review by hinging review to discovery of new and important matters or evidence, mistake or error on the face of the record and any other sufficient reason.

7. The Court of Appeal had the following to say in an application for review in the case of National Bank of Kenya Ltd v Ndungu Njau.“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”

8. In Chandrakhant Joshibhai Patel -v- R [2004] TLR, 218 it had been held that an error stated to be apparent on the face of the record:“...must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long-drawn process of reading on points on which may be conceivably be two opinions."

9. The judgment dated 3rd August 2017 has an apparent error on the face of the record as the calculation undertaken by the trial magistrate for loss of dependency had an error. The correct award if calculated is (30,000 x 12 x 25 x 1/3= Ksh 3,000,000/=). The plaintiff/Respondent rightly did not oppose this application and by virtue of Order 51 rule 14 of the same is deemed un opposed.

C. Disposition 10. The application dated 2nd March 2021 is therefore wholly merited and the same is allowed. The judgment dated 3rd August 2017, is reviewed to the extent that the loss of dependency awarded is reduced to Ksh 3,000,000/=.

11. Each party shall bear their own costs of this application.

12. It is so ordered.

READ, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS ON THIS 14TH DAY OF DECEMBER, 2023. FRANCIS RAYOLA OLELJUDGEIn the presence of: -Mr. Muturi for plaintiffMr. Ooko for defendant